Wednesday, July 21, 2010

D.C. SSM Ruling May Inspire

The most brutal tool in anti-gay/anti-equality box disappeared — at least temporarily — last week in D.C. The District's highest judiciary, the Court of Appeals, rejected a ballot initiative aimed at overturning legalized same-sex marriage there.

Delightfully enough, the strongly worded 81-page judgment in the 5 to 4 decision came down firmly against discrimination. Wingers have been gaming the system for some time using spurious let-the-people-vote ploys. This court didn't bite and didn't buy.

My favorite legal expert, NYU Professor Arthur S. Leonard, provides analysis. The crux is in the decision where the majority write they are bound by anti-discrimination law as well as Council authority:

Because appellants’ proposed initiative would authorize, or have theeffect of authorizing, discrimination on a basis prohibited by the Human Rights Act, it was not aproper subject of initiative. Therefore, the Board acted lawfully in refusing to accept the initiativeon that basis. (page 53)

The front man for the anti-SSM effort in D.C. is Bishop Henry R. Jackson Jr. of the Hope Christian Church, Beltsville, MD. Not surprisingly, he says he is a conservative Republican. His group's first effort was to stay implementation of SSM in March after the District Council had approved it. Courts denied that.

This is not precedent and not binding outside of the District. However, with other recent judicial and legislative trends, it suggests a growing courage and fairness among the usually timid judiciary. The laughable claim of wingers of activist judges legislating from the bench invariably comes only when they don't get their absolute way from courts. Having tried lawmakers, referenda/ballot initiatives and courts, there is much keening when they can't bludgeon the other side.

Here, they are likely to try and to fail appealing to the U.S. Supreme Court. Unfortunately for them, as a Washington Posteditorial suggests, this is not a U.S. Constitutional issue, rather a local one. When Second-Amendment folk got the D.C. handgun ban overturned, it was on the national-interest. Lackaday for the anti-SSM folk, as the editors put it, "There is no constitutional issue of national import or circuit split in the Jackson case. The court should decline to hear the matter and respect the District's right to home rule. "

Naming Evils Tames Them

Here indeed may be the D.C. Court of Appeals significance. The anti-SSM folk scream for states rights in defining marriage when it suits them and not when it doesn't.

The position of the MA Family Institute in their latest email is:

Until the District gives its people a voice, Bishop Harry Jackson's team is determined to bring the issue to the steps of the U.S. Supreme Court, the next--and final stop--in preserving the principle of self-governance that this city is supposed to symbolize. Do what you can to help Stand for Marriage and Alliance Defense Fund fight this agenda--starting with prayer for their team.

Prayer won't be enough here. Despite their bag of states who started one-man/one-woman marriage definition laws and amendments even before MA legalized SSM, even they tacitly admit the legislative and judicial trends here. The larger world as well as various U.S. States and now the District are edging toward individual liberties and honoring equality over discrimination — even for those homosexuals.

It may be decades before Texas and Florida allow marriage equality. Yet here and there and over there, we continue to bend toward justice in that arc so aptly described by Rev. Theodore Parker. The brutal tool of the emotionally founded ballot initiative has caused terrific personal, political and economic damage. I delight when a court or legislature limits these to justifiable purposes instead of discrimination.

Naming evils, as the D.C. Court of Appeals did, helps tame them. Moreover, courts and legislatures are finding the guts to say the obvious — there's no benefit to different-sex marriage from forbidding SSM. When anti-equality folk say they aren't bigots because they want to discriminate against SS couples, they increasingly hear, "Yes, you are."